Lauber v. Firemen's Relief Ass'n of Salina
| Decision Date | 12 June 1965 |
| Docket Number | No. 44113,44113 |
| Citation | 402 P.2d 817,195 Kan. 126 |
| Parties | Peter J. LAUBER, Appellant, v. The FIREMEN'S RELIEF ASSOCIATION OF SALINA, a corporation, J. E. Travis, president of said corporation, Edwin C. Bross, vice-president of said corporation, Charles W. McCabe, secretary of said corporation, Leonard L. Todd, treasurer of said corporation, Jack H. Gray, Gordon A. Nichols, Hobart J. McCabe, Laverne A. Brockway and Lawrence R. Tinkler, the directors of said corporation, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
(1) The remedy of mandamus is available only for the purpose of compelling the performance of a clearly defined duty resulting from the office, trust, or official station of the party to whom the order is directed, or from operation of law. The remedy may not be used to control discretion or to enforce a right which is in substantial dispute.
(2) In an action by an injured fireman against a firemen's relief association and its officers for an order of mandamus directing defendants to pay the amount of plaintiff's demand, the record is examined and as fully set forth in the opinion it is held the remedy of mandamus is unavailable to plaintiff and that the trial court properly sustained defendants' motion to dismiss the action.
D. E. Watson, Salina, argued the cause and was on the brief for appellant.
L. O. Bengtson, Salina, argued the cause and was on the brief for appellees.
Plaintiff has appealed from an order dismissing his action for an order of mandamus.
Highly summarized, the background of the matter--as alleged in the petition--is this:
Plaintiff, a former member of the fire department of the city of Salina, was injured in line of duty as a result of which he became partially disabled. At all times in question city ordinances substantially identical to the provisions of K.S.A. 40-1707 were in full force and effect. Defendant corporation, through its officers, in recognition of its liability to plaintiff for his injuries, paid plaintiff's hospital and doctor bills. On April 15, 1964, plaintiff caused to be served on defendants a----
'Demand for Payment of Loss Due to Injuries and Physical Disability Sustained while Discharging Duties as a Fireman'
The demand set forth the facts of the injury, that plaintiff had been discharged as a fireman, and made claim for loss of past wages together with payment for the future on a 15% partial disability life expectancy basis. The demand totaled $27,933.91. The petition further alleged that plaintiff waited for more than thirty days for defendant corporation and its officers to comply with his demand, but that they failed and refused to do so. This action was brought shortly thereafter. The prayer of the petition was that the court
'* * * award against said defendants an order of mandamus, commanding them to pay to plaintiff his said loss so caused by his said injury and his said physical disability from the funds in the possession of defendant, The Firemen's Relief Association of Salina, a corporation in the sum of $27,933.91, * * *'
together with a reasonable attorney's fee, and for equitable relief.
Defendants filed a motion to dismiss the action on the ground the petition failed to state a claim against them upon which the relief sought could be granted for the reasons that defendant corporation had paid all medical expenses which plaintiff was obligated to pay as a result of his injury, that defendant corporation had paid on behalf of plaintiff 85% of the premiums on health and accident policies carried by plaintiff while a member of the fire department, and that payment of benefits under the provisions of K.S.A. 40-1707 and the city ordinances is discretionary with the governing body of defendant corporation.
In sustaining the motion to dismiss the trial court noted that plaintiff was asking the court to direct the Firemen's Relief Association of Salina to pay plaintiff from its funds the lump sum of $27,933.91, and ruled----
'Before the court can issue a writ of mandamus it must find a clear legal right has been violated and that the acts of the defendants were arbitrary.
'This court has no authority to direct the payment of $27,933.91 as prayed for, and the motion is hereby sustained August 17,...
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...remedy may be had only when the party invoking it is clearly entitled to the order which he seeks. (Following Lauber v. Firemen's Relief Assn. of Salina, 195 Kan. 126, 402 P.2d 817 [1965].) "The only acts of public functionaries which the courts ever attempt to control by either injunction ......
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